Jus cogens

jus cogens (noun LAW, Latin for “compelling law”): A peremptory norm (also called
jus cogens or ius cogens) is a fundamental principle of international law that is
accepted by the international community of States as a norm from which no derogation
is permitted. The principles which form the norm of international law cannot be set
aside.

A peremptory norm of gen IL is a norm accepted and recog by the international

community of States as a whole, as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of gen IL having the same character.
Unlike ordinary customary law, which has traditionally required consent and allows the
alteration of its obligations between states through treaties, peremptory norms cannot
be violated by any state “through international treaties or local or special
customs or even general customary rules not endowed with the same normative
force”.

There is no universal agreement regarding precisely which norms are jus cogens nor
how a norm reaches that status, but it is generally accepted that jus cogens includes the
prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as
the slave trade),torture, refoulement and wars of aggression and territorial
aggrandizement. It was the judgments of the Permanent Court of International Justice
that indicate the existence of such a peremptory norm. In the Wimbledon Case in 1923,
not mentioning peremptory norms explicitly but stating how State sovereignty is not
inalienable.

Under Article 53 of the Vienna Convention on the Law of Treaties, any treaty that
conflicts with a peremptory norm is void. The treaty allows for the emergence of new
peremptory norms, but does not specify any peremptory norms. It does mention the
prohibition on the threat of use of force and on the use of coercion to conclude an
agreement:

“A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized
by the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.”

The number of peremptory norms is considered limited but not exclusively catalogued.
They are not listed or defined by any authoritative body, but arise out of case law and
changing social and political attitudes. Generally included are prohibitions on waging
aggressive war, crimes against humanity, war crimes, maritime piracy, genocide,
apartheid, slavery, torture. As an example, international tribunals have held that it is
impermissible for a state to acquire territory through war.

Some peremptory norms define criminal offences considered to be enforceable

against not only states but also individuals. That has been increasingly accepted
since the Nuremberg Trials (the first enforcement in world history of international norms
upon individuals) and now might be considered uncontroversial. However, the language
of peremptory norms was not used in connection with these trials, rather the basis of
criminalization and punishment of Nazi atrocities, was that civilization could not
tolerate their being ignored because it could not survive their being repeated.

By codifying the doctrine of jus cogens and rebus sic stantibus the Convention further
provides a framework for dealing with change in an orderly fashion. By reasserting the
ppl of pacta sunt servanda it strengthens the customary rule which has always been the
keystone of the treaty structure.

Examples.

Execution of juvenile offenders

The case of Michael Domingues v. United States provides an example of an

international body’s opinion that a particular norm is of a jus cogens nature. Michael
Domingues had been convicted and sentenced to death in Nevada, United States for
two murders committed when he was 16 years old. Domingues brought the case in front
of the Inter-American Commission of Human Rights which delivered a non-legally
binding report. The United States argued that there was no jus cogens norm that
“establishes eighteen years as the minimum age at which an offender can receive a
sentence of death”. The Commission concluded that there was a "jus cogens” norm not
to impose capital punishment on individuals who committed their crimes when they had
not yet reached 18 years of age.”
The United States has subsequently banned the execution of juvenile offenders.
Although not necessarily in response to the above non-binding report, the Supreme
Court cited evolving international norms as one of the reasons for the ban.

Torture

The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v.
Furundžija that there is a jus cogens for the prohibition against torture. It also
stated that every state is entitled “to investigate, prosecute and punish or extradite
individuals accused of torture, who are present in a territory under its jurisdiction.”
Therefore, there is universal jurisdiction over torture. The rationale for this is that “the
torturer has become, like the pirate and the slave trader before him, hostis humani
generis, an enemy of all mankind.”